Q & A with eDiscovery Expert Amy Sellars from Cardinal Health

Discovery challenges in 2020 seem to be increasing rather than decreasing. Indeed, the proliferation of ephemeral messaging apps and workplace collaboration tools spotlight just a few of the complexities surrounding eDiscovery confronting organizations today.

Against this backdrop, it’s a relief to know there are experts in the field of eDiscovery who can help clients navigate these troubles. One of the leading in-house experts on these issues is Amy Sellars. Amy, who serves as the assistant general counsel and director of eDiscovery for Cardinal Health, is a seasoned eDiscovery practitioner who specializes in advising Fortune 500 companies on eDiscovery and related legal issues.

I have been privileged to serve together with Amy on The Sedona Conference Working Group One Steering Committee and recently had a chance to catch up with her on some of the eDiscovery issues on which she is working.

Tell us about your background and how you became involved with eDiscovery?

I was a theater bug in high school and college, and my first jobs were in not-for-profit arts. Stage Management was my favorite role, and I loved being a part of designing and telling a story. When I started having children, I became a teacher, and then worked for an ed-tech start-up focused on supporting Federal Title I programs. That’s where I learned to love databases. When I burned out on public education in America, I went back to law school – more running away than running towards something. I took Pre-Trial Litigation with Professor Alan Stein and U.S. Magistrate Judge Joel Schneider; all of a sudden it felt like a divine force brought me to law school. My love of stories and databases came together in my law career.

What are some of the aspects of eDiscovery you enjoy? What could you do without?

I spent some formative years in New York City, and some of that time was spent in the Thalia movie theater watching classic films. I was deeply affected by Akira Kurosawa’s Rashomon, which tells the same story from multiple perspectives. That’s my experience of eDiscovery – putting a story together from multiple perspectives and sources of information and then deciding which truth is best supported. eDiscovery feeds my love of narrative.

I could do without the perception that “this eDiscovery headache” is ancillary to the real issues or that it is just an expensive waste of time. eDiscovery does require planning and attention to detail, but, as Judge Grimm says, advocacy cannot begin until the facts are known. And we all know that every case is different because of the facts.

Why do communication tools like messaging apps and workplace collaboration tools seem to present such unique eDiscovery difficulties for organizations?

So many reasons! I refer your readers to your excellent article on this. On a very simple level, many of these tools were not built to allow you to “retrace the past” outside of the tool, making it difficult to reassemble the data in a format where the viewer can understand what was happening in real time. Reviewing data from these tools is like trying to read a book out of order – you are in Chapter 4, but you don’t know what happened in Chapter 2. (Or like another favorite movie, Memento.)

One of the other challenges is the blur between work and personal, which is heightened now by the country working from home. Communications move between work and personal and even from one app to another in the same conversation. It is hard to understand what was said when to whom, but it’s also hard to address the concerns of people who have comingled their private lives and their work lives.

What are some of the other key eDiscovery challenges facing organizations today?

Information Governance has always been a challenge for eDiscovery professionals who find themselves in the position of a crime scene clean up—the calamity is over by the time we arrive. Organizations want to move fast and typically this means little to no spend or focus on neat and tidy data. The left side of the EDRM is eating the rest of the model.

Privacy is the new Information Governance driver and privacy professionals are eDiscovery’s best friends right now. New requirements that organizations be able to respond to individual demands for data may drive better information governance, which could push back the tide of cost and complexity in eDiscovery.

If you could share one piece of advice (or more!) with outside counsel and service providers to improve eDiscovery for clients, what would that advice be?

• Do personal custodial interviews by phone or by video. If someone mentions a data source, do more than write it down in your notes. Ask to see it on a screen share. If it’s a database, ask for some of the standard reports. Find out the volume of the records that may be at issue.
• Use samples and sampling to learn your data and set expectations with the court and your opposing counsel. Don’t wait for search terms proposed by the other side—you know your key custodians and you know the claims. Pull a small sample of communications, test your term volumes, and try some simple analytics—even word clouds can help.
• Never make promises like, “we won’t have to do discovery on X.” The judge decides that. Instead, describe the proportionality and burden argument you are going to make to the judge and get concrete supporting information from your client.

Find the facts, do what’s right, tell great stories, and enjoy your work!